Blakely

This is an appeal upon the judgment roll from a judgment granting to plaintiff a divorce on the ground of desertion. The complaint alleges their intermarriage on the twenty-second day of September, 1887, and the willful desertion of plaintiff by defendant on the twenty-third day of September, 1887.

The allegation of desertion is denied by the answer, and the defendant, by her cross-complaint, seeks affirmative relief on the same ground, and fixes the date thereof on the twenty-fourth day of February, 1888. This is denied by the answer to the cross-complaint.

It appears from the record that the court below re- ■ fused to consider the cross-complaint except by way of answer and defense, and declined to grant any affirmative relief based thereon, because no cross-complaint as such could be considered in an action for divorce. This ruling of the court, which was excepted to at the time, and is assigned for error, was clearly erroneous (Wads- *326 worth v. Wadsworth, 81 Cal. 182 ; 15 Am. St. Rep. 38 ; Mott v. Mott, 82 Cal. 413 ; Kirsch y. Kirsch, 83 Cal. 633 ); and unless the record affirmatively shows that the defendant was not injured thereby, the judgment should be reversed.…